Dear All,
I have a unique situation here:
I have a case where there are 50 defendants. We have served summons on them and the report indicated that 1 of them was dead. How ever once again the summons were served on all of them this time the report indicated that 3 of the defenadnats were dead. However these 3 were different form the 1 who appeared to be dead in the first summon report. Finally we applied foer substituted service and we served the summons through RPAD. This time the reporst indicated that 1 defendant was dead, but this was different from the 1 and the 3 reported dead in the first two summon reports. IN the RPAD report summons were sevrved on rest of the 49 defendants.
In the mean time there took place argument on the Exhibit -V for maintenance of "Status Quo" till disposal of the present litigation. The Arguments were advanced by the Plaintiff and Diffendant No. 50 who is the sole defendant who appeared int he suit.
We moved an application seeking ex-party order on against all the defendants except the one whose report by RPAD was that she was dead. Which was grnated and the suit was ordered to be heared ex-party against rest of the defendants, leaving the one who was dead (as per RPAD report) and one who appeared.
Howver on the date of pronouncing order on Exhibit - V court communicated that they can not issue order against a dead person.
We moved an application that there is inconsistance in the reports and hance more time may be granted to investigate the death of one Defendant and also to bring on records the heirs if any.
We further paryed that the order against the Party who has appered and argued and also against the defendants who have failed to appear may please be passed.
The Court communicated that "when the one of the defednat is dead no order against any of the defendnats can be passed unless the heirs are substituted and duly served with the summons". and also asked us to show him provision and/or case law if it can be done.
This position of the court seems to me to be incorrect position to me. I want to rely upon Order XXII Rule 4 of CPC but the problem here is that the summons were not duly served on the dead defendant and hence I can not invoke the same.
I would reuest you to provide me with any Case Law and/or provision where it is clear that:
In case on of the defendant appeared to be dead, then it does not bar passing of order aginst rest of the defendant and the court can pass any order against rest of them.
Also please suggest as to what should be done as I am not sure wether the defendant is dead.
Thanks and regards.
Adv. L. K. Jhunjhunwala
